'1. Before court is a motion dated 20 November 2024 expressed to be brought under sections 1A, 1B, 3A and 79G of the Civil Procedure Act, cap. 21; and, orders 42 rule 6 and 50 rule 6 of the Civil procedure Rules.
The primary prayers in the motion have been couched as follows:
“2. That the Honorable Court be pleased to stay execution of the judgment of 11ᵗʰ October 2024 issued by Hon. G SOGOMO(PM) in MOMBASA CMCC 2536 OF 2024: SAIDI SULEIMAN BIDU (suing as the administrator/ personal representative of the estate of SAUMU SAIDI (Deceased Minor) vs RYCE MOTORS EAST AFRICA LIMITED & ANOTHER pending the hearing and determination of this Application.
3. That the Honorable Court be pleased to grant the Applicant an extension of time within which to file its appeal against the Judgment of the Honourable G SOGOMO(PM) delivered on 11ᵗʰ October 2024 in MOMBASA CMCC 2536 OF 2024: SAIDI SULEIMAN BIDU (suing as the administrator/ personal representative of the estate of SAUMU SAIDI (Deceased Minor) vs RYCE MOTORS EAST AFRICA LIMITED & ANOTHER.
4. That the Honourable court be pleased to stay execution of the judgment of 11th October 2024 issued by Hon G SOGOMO(PM) in MOMBASA CMCC 2536 OF 2024 pending hearing and determination of the intended appeal.”
2. The application is supported by the affidavit of Mohammed Sheba in which he has sworn that on 11 October 2024, the Honourable G. Sogomo (Principal Magistrate) delivered a judgment in Mombasa Chief Magistrates Court Civil Case No. 2536 of 2024: Saidi Suleiman Bidu (suing as the administrator/ personal representative of the estate of Saumu Saidi (Deceased Minor) vs Ryce Motors East Africa Limited and Another.
3. Upon learning of the judgment, the applicant’s advocate on record informed the applicant’s Human Resources officer of the judgment through email and sought further instructions on the matter. At the time, Sheba and the Human Resources officer were on leave and that there was a breakdown of communication between the applicant and its advocates.
4. Nonetheless, instructions to file the appeal were given on the 13 November 2024 which was two days after the thirty-day deadline within which the appeal ought to have been filed. Accordingly, the applicant seeks enlargement of time as failure to file the appeal within the statutory period was not deliberate.
5. The applicant also seeks stay of execution of the judgment because without it, the respondents are likely to execute the judgment appealed against and, inevitably, the applicant is bound to suffer irreparable harm.
6. Said Suleman Bidu swore a replying affidavit opposing the application. To begin with, he has stated there is no decree or certificate of costs that has been drawn and issued and, therefore, there is no immediate danger of execution. But if the court is inclined to grant stay of execution, it should be on conditions that:
a) The applicant does pay half of the decretal sum to his advocates and the other half be deposited in court; and,
b) The amounts aforesaid be paid within thirty days of the courts order.
7. There are two limbs to the applicant’s application the first of which is for extension of time to file the appeal out of time while the second limb is for stay of execution.
8. As far as the prayer for stay of execution is concerned, there is no doubt that it is pegged on order 42 Rule 6 (1) of the Civil Procedure Rules. This rule reads as follows:
6. Stay in case of appeal
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(Emphasis added).
9. This rule presupposes that an application for stay of execution in the court to which an appeal has been preferred can only be made if the appeal has been filed. Indeed, this Honourable Court, for instance, aside from its supervisory jurisdiction over the magistrate’s court, can only entertain matters arising from that court in exercise of its appellate jurisdiction.
10. Thus, in an application of the nature that is now before court, the law is clear that… “the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just…”
11. Without belabouring the point, this court can only entertain an application for stay of execution pending appeal from the magistrates’ court when the appeal has, in fact, been filed. It is only in the context of the application that has been made within an appeal that this honourable court is seized of jurisdiction to consider the application for stay and make such order or orders as it may deem appropriate.
12. It follows that without the appeal, an application for stay of execution of a judgment from the magistrate’s court, is premature. The applicant’s application for stay of execution would fall for this reason. The appeal is yet to be preferred and, without it, this Honourable Court is bereft of jurisdiction to entertain the application for stay on the basis of a pending appeal when it obvious that none exists.
13. The only other prayer in the applicant’s application is the prayer for leave to file the appeal out of time. Section 79 G of the Civil Procedure Act prescribes the time within which an appeal from the magistrates’ court ought to be filed to this Honourable court from the date of the decree or order appealed against. It states as follows:
79G. Time for filing appeals from subordinate courts
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
14. The judgment against which the applicant intends to appeal was rendered on 11 October 2024 and, therefore, the appeal ought to have been filed by 11 November 2024. The applicant did not file the appeal within the prescribed timeline, hence the application to file the appeal out of time. The window to admit the appeal out of time is open under the proviso to section 79(G).
15. Extension of time in such circumstances is a discretion of this Honourable Court and the principles to consider in exercising such a discretion have been spelt out by the Supreme Court in Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR. The court held the principles to be as follows:
“a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.”
16. And while considering the same question of the quest to file appeal out of time, the Court of Appeal in Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, held as follows: -
“...it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
17. Turning back to the applicant’s application, the application was filed on 21 November 2024, a little over a week after the lapse of time within which the appeal ought to have been filed. The applicant has explained that there was some lapse in communication with its counsel on record hence the delay. I would not consider the delay as inordinate, and, in the circumstances of this case, I am satisfied that a “good and sufficient” cause has been proffered for the delay in filing the appeal or the application before court. Moreover, the respondent does not appear to oppose the applicant’s quest to file the appeal out of time. All he is concerned with are the conditions which should be imposed on the applicant in the event the court grants the prayer for stay of execution.
18. Accordingly, the applicant’s application is allowed only to the extent that the time within which the applicant ought to file its appeal is enlarged and the applicant is granted fourteen days from the date of this ruling to file and serve its appeal. Parties will bear their respective costs. It is so ordered.
'
The primary prayers in the motion have been couched as follows:
“2. That the Honorable Court be pleased to stay execution of the judgment of 11ᵗʰ October 2024 issued by Hon. G SOGOMO(PM) in MOMBASA CMCC 2536 OF 2024: SAIDI SULEIMAN BIDU (suing as the administrator/ personal representative of the estate of SAUMU SAIDI (Deceased Minor) vs RYCE MOTORS EAST AFRICA LIMITED & ANOTHER pending the hearing and determination of this Application.
3. That the Honorable Court be pleased to grant the Applicant an extension of time within which to file its appeal against the Judgment of the Honourable G SOGOMO(PM) delivered on 11ᵗʰ October 2024 in MOMBASA CMCC 2536 OF 2024: SAIDI SULEIMAN BIDU (suing as the administrator/ personal representative of the estate of SAUMU SAIDI (Deceased Minor) vs RYCE MOTORS EAST AFRICA LIMITED & ANOTHER.
4. That the Honourable court be pleased to stay execution of the judgment of 11th October 2024 issued by Hon G SOGOMO(PM) in MOMBASA CMCC 2536 OF 2024 pending hearing and determination of the intended appeal.”
2. The application is supported by the affidavit of Mohammed Sheba in which he has sworn that on 11 October 2024, the Honourable G. Sogomo (Principal Magistrate) delivered a judgment in Mombasa Chief Magistrates Court Civil Case No. 2536 of 2024: Saidi Suleiman Bidu (suing as the administrator/ personal representative of the estate of Saumu Saidi (Deceased Minor) vs Ryce Motors East Africa Limited and Another.
3. Upon learning of the judgment, the applicant’s advocate on record informed the applicant’s Human Resources officer of the judgment through email and sought further instructions on the matter. At the time, Sheba and the Human Resources officer were on leave and that there was a breakdown of communication between the applicant and its advocates.
4. Nonetheless, instructions to file the appeal were given on the 13 November 2024 which was two days after the thirty-day deadline within which the appeal ought to have been filed. Accordingly, the applicant seeks enlargement of time as failure to file the appeal within the statutory period was not deliberate.
5. The applicant also seeks stay of execution of the judgment because without it, the respondents are likely to execute the judgment appealed against and, inevitably, the applicant is bound to suffer irreparable harm.
6. Said Suleman Bidu swore a replying affidavit opposing the application. To begin with, he has stated there is no decree or certificate of costs that has been drawn and issued and, therefore, there is no immediate danger of execution. But if the court is inclined to grant stay of execution, it should be on conditions that:
a) The applicant does pay half of the decretal sum to his advocates and the other half be deposited in court; and,
b) The amounts aforesaid be paid within thirty days of the courts order.
7. There are two limbs to the applicant’s application the first of which is for extension of time to file the appeal out of time while the second limb is for stay of execution.
8. As far as the prayer for stay of execution is concerned, there is no doubt that it is pegged on order 42 Rule 6 (1) of the Civil Procedure Rules. This rule reads as follows:
6. Stay in case of appeal
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(Emphasis added).
9. This rule presupposes that an application for stay of execution in the court to which an appeal has been preferred can only be made if the appeal has been filed. Indeed, this Honourable Court, for instance, aside from its supervisory jurisdiction over the magistrate’s court, can only entertain matters arising from that court in exercise of its appellate jurisdiction.
10. Thus, in an application of the nature that is now before court, the law is clear that… “the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just…”
11. Without belabouring the point, this court can only entertain an application for stay of execution pending appeal from the magistrates’ court when the appeal has, in fact, been filed. It is only in the context of the application that has been made within an appeal that this honourable court is seized of jurisdiction to consider the application for stay and make such order or orders as it may deem appropriate.
12. It follows that without the appeal, an application for stay of execution of a judgment from the magistrate’s court, is premature. The applicant’s application for stay of execution would fall for this reason. The appeal is yet to be preferred and, without it, this Honourable Court is bereft of jurisdiction to entertain the application for stay on the basis of a pending appeal when it obvious that none exists.
13. The only other prayer in the applicant’s application is the prayer for leave to file the appeal out of time. Section 79 G of the Civil Procedure Act prescribes the time within which an appeal from the magistrates’ court ought to be filed to this Honourable court from the date of the decree or order appealed against. It states as follows:
79G. Time for filing appeals from subordinate courts
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
14. The judgment against which the applicant intends to appeal was rendered on 11 October 2024 and, therefore, the appeal ought to have been filed by 11 November 2024. The applicant did not file the appeal within the prescribed timeline, hence the application to file the appeal out of time. The window to admit the appeal out of time is open under the proviso to section 79(G).
15. Extension of time in such circumstances is a discretion of this Honourable Court and the principles to consider in exercising such a discretion have been spelt out by the Supreme Court in Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR. The court held the principles to be as follows:
“a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.”
16. And while considering the same question of the quest to file appeal out of time, the Court of Appeal in Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, held as follows: -
“...it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
17. Turning back to the applicant’s application, the application was filed on 21 November 2024, a little over a week after the lapse of time within which the appeal ought to have been filed. The applicant has explained that there was some lapse in communication with its counsel on record hence the delay. I would not consider the delay as inordinate, and, in the circumstances of this case, I am satisfied that a “good and sufficient” cause has been proffered for the delay in filing the appeal or the application before court. Moreover, the respondent does not appear to oppose the applicant’s quest to file the appeal out of time. All he is concerned with are the conditions which should be imposed on the applicant in the event the court grants the prayer for stay of execution.
18. Accordingly, the applicant’s application is allowed only to the extent that the time within which the applicant ought to file its appeal is enlarged and the applicant is granted fourteen days from the date of this ruling to file and serve its appeal. Parties will bear their respective costs. It is so ordered.
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